When fired FBI Director James Comey appeared before the Senate Intelligence Committee on Thursday, one question he had to answer was: Why didn’t you stand up to Donald Trump? Here’s what Comey said when asked why he didn’t say no to his boss when being asked to drop the Russia investigation:
SEN. MARCO RUBIO: Director Comey, the meeting in the oval office where [Trump] made the request about Mike Flynn, was that only time he asked you to hopefully let it go?
RUBIO: And in that meeting, as you understood it, he was asking not about the general Russia investigation, he was asking specifically about the jeopardy that Flynn was in himself?
COMEY: That's how I understood it. Yes, sir.
RUBIO: As you perceived it, while he hoped you did away with it, you perceived it as an order, given the setting, the position, and some of the circumstances?
RUBIO: At the time, did you say something to the president about, that is not an appropriate request, or did you tell the White House counsel, it's not an appropriate request? Someone needs to tell the president he can't do these things.
COMEY: I didn't, no.
COMEY: I don't know. I think — as I said earlier, I think the circumstances were such that it was — I was a bit stunned and didn't have the presence of mind. I don't know. I don't want to make you sound like I'm captain courageous. I don't know if I would have said to the president with the presence of mind, sir, that's wrong. In the moment, it didn't come to my mind. What came to my mind is: Be careful what you say. I said, I agree Flynn is a good guy.
This line of questioning is very familiar to me. I’m an employment lawyer who works with employee clients. One of the things management-side lawyers frequently ask my clients in trial is why they didn’t tell anyone in management what was going on. Whether it’s sexual harassment, discrimination, or something else illegal, many times employees simply sit quietly and try to ride it out rather than rock the boat. Judges and juries frequently hold it against employees who are afraid to speak out.
Yet Comey’s testimony proves that even the toughest tough guys sometimes chicken out when it comes to saying no to their bosses. When your boss is the president, whether the president of the United States or president of your company, standing up is that much harder.
Most employees avoid confrontations with their superiors. They, like Director Comey, are careful what they say. It’s only a brave few who flat-out tell their boss they refuse to do what they’re being asked because it’s illegal or inappropriate.
It’s common for employees to fear speaking out
I’ve been handling employee-side employment law for more than 25 years now in Florida. I started out representing both employers and employees, but I found my bliss was in representing employees. There are few laws protecting employees in my home state, and I like fighting for the underdog.
Employees are the lifeblood of our capitalist economy, yet we choose not to give them much protection. We allow employers to force employees into signing noncompete agreements saying they can’t work in their chosen industry for a year or two. Courts impose almost impossible hurdles on employees who bring discrimination claims.
With so many advantages for the bosses and so many obstacles for employees, it’s no wonder workers are afraid to speak out. I’ve had many cases where victims of discrimination or sexual harassment didn’t report that illegal activity to HR even when the company had a published policy for reporting it. After all, HR represents the company, not you. There is no way to report discrimination or sexual harassment without putting yourself and your job at risk. Although retaliation is illegal, many complainers are shunned, nitpicked, and ultimately cast aside.
For whistleblowers, it’s even more difficult. I’ve found in my years representing clients that co-workers and bosses often go by the old playground rule of “no snitching.” Snitches are frequently treated like pariahs at work. It’s almost laughably easy to get rid of an employee by making them miserable and driving them to quit, or by writing them up for every little thing until they look like the worst problem employee in the world. Too many employers get away with this type of retaliation.
When a boss orders you to do something that is legally questionable, it’s hard to say no. I’ve seen many cases where now-former employees tell me they were ordered to do something they knew was problematic but they did it anyway. Whether they are told to fire an employee due to their age or pregnancy, fail to pay overtime, or refuse to speak to police over illegal activity, many people just follow orders rather than put themselves at risk of firing. And when employees tell me their co-workers will back them up and tell the truth under oath, I tell them that often doesn’t happen. Most people will lie to save their jobs.
Those few who do stand up should be protected. We should fight to make sure that the brave people who say no to illegal activities aren’t forced out of their jobs.
Comey isn’t covered by employment law — but most American workers are
So, what if Comey showed up in my office as a client after refusing to comply with the president? Is there anywhere he could have reported the president’s behavior that would have protected him as a whistleblower?
Nope. The FBI director is an at-will employee, as are most Americans. The difference is that he serves at “the pleasure of the president.” There is an FBI Whistleblower Protection Law, but it doesn’t protect anyone in a “position which the Attorney General has designated in advance of encumbrance as being a position of a confidential, policy-determining, policy-making, or policy-advocating character.” I haven’t seen any litigation on this issue, but I’m betting the FBI director has been designated this way.
Plus, this law only protects FBI employees from being fired or retaliated against by someone who works at the FBI. The president doesn’t, so the law doesn’t stop him from doing what he wants. While there may be consequences for the president for firing Comey (or maybe not!), that won’t get Mr. Comey his job back. When you have no legal protection, you have to be pretty darned brave to stand up to your boss, even if they’re asking you to do something that crosses legal lines.
Fortunately for the rest of us, most American employees are protected under some whistleblower protection law. In general, these laws protect you if you are reporting that the company is doing something that violates a law, ordinance, or government regulation. There is almost nothing that protects you if you are reporting bullying, non-discriminatory harassment, violations of company policies, or a co-worker ripping the company off.
Yet even with legal protection, whistleblowing takes a special kind of bravery. You have to be willing to face down the person you snitched on every day. You have to be willing to face co-workers who think snitching is a bad thing. Going back to work after reporting your boss or standing up is awkward. It’s uncomfortable. Mr. Comey used those words a lot in his written and spoken testimony. He was right.
If you are one of the few, the brave, thinking about standing up to a boss, there are many whistleblower laws that may protect you, but also varying deadlines, hoops to jump through and legal requirements to obtain that precious legal protection. Talk to an employee-side employment lawyer if you are in doubt about your rights.
Some legal protections that come to mind are protections for employees for both the government and private companies who disclose information about illegal activity like violations of SEC rules or fraud. Some states protect whistleblowers who report on violations of overtime or discrimination. There are laws protecting you if you are retaliated for attempting to discuss poor work conditions or bullying with your boss.
Even if you are like Director Comey and decide not to directly stand up to your boss and tell them they’re asking you to do something inappropriate, when the boss starts asking you to cross legal lines, you have to refuse. You could be sued, or worse, prosecuted, if you break the law.
Sometimes resisting and just not following the illegal instruction will buy you some time to find another job. One thing is for sure: If your boss is asking you to break the law, it’s time to do something.
Donna Ballman has been practicing employee-side employment law in Florida for more than 25 years. Donna’s book, Stand Up For Yourself Without Getting Fired: Resolve Workplace Crises Before You Quit, Get Axed or Sue the Bastards, was named the winner of the Law Category of the 2012 USA Best Books Awards. She’s been practicing employment law, including negotiating severance agreements and litigating discrimination, sexual harassment, noncompete agreements, and employment law issues in Florida since 1986. Her blog on employee-side employment law issues, Screw You Guys, I’m Going Home, was named one of the ABA Blawg 100 best legal blogs for the past six years in a row, and the 2011 Lexis/Nexis Top 25 Labor and Employment Law Blogs.